Residual Functional Capacity: Impact of Sit/Stand Option on the Sedentary Work RFC

Claimants are frequently limited in their capacity to sit, stand or walk for prolonged periods and often require the ability to sit and stand at will. Depending on the frequency that the claimant requires such freedom to alternate between sitting and standing, the occupational base for a full range of sedentary work can be significantly eroded. SSR 96-9p. With few exceptions, where the claimant requires the ability to sit and stand at will, the clear direction of the case law is that the ALJ may not mechanically rely on the Grids and must obtain vocational expert (“VE”) testimony. In general, claimants have not been successful in overturning ALJ decisions where the ALJ relies on VE testimony that the claimant still can perform other work despite a need to alternate between sitting and standing.

Please note that the following listing of cases does not include cases where the ALJ properly determined that the claimant did not need to alternate between sitting and standing, unless such cases also discuss in detail the applicable standard of analysis. The topic also does not include a discussion of the impact of the need for a sit/stand option on the ability to perform light work.

Applicable Regulations

20 C.F.R. §§ 404.1567, 416.967

Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

Applicable Rulings

Social Security Ruling 96-9p

SSR 96-9p provides that some individuals are required to alternate sitting and standing, and where the “need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded.” The extent of the erosion depends on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual’s need to alternate sitting and standing. SSR 96-9p further provides that it may be “especially useful” in such situations to consult a vocational resource to determine whether the individual can make an adjustment to other work.

Social Security Ruling 83-12

SSR 83-12 provides that an individual who may be able to sit for a time, but must then get up and stand or walk awhile before returning to sitting is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work or the prolonged standing or walking contemplated for most light work. SSR 83-12 further provides that there are some jobs in the national economy — typically professional and managerial ones — in which a person can sit or stand with a degree of choice. If an individual had such a job and was still capable of performing it, or was capable of transferring work skills to such jobs, he or she would not be found disabled. Most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a VE should be consulted to clarify the implications for the occupational base.

Other Sources

POMS DI 25015.020

This provision directly addresses a claimant’s need to alternate between sitting and standing. An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual’s need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.

Applicable Case Law

First Circuit

The First Circuit held that the ALJ fully considered the claimant’s particular limitations, including the need to alternatively sit and stand, and properly relied upon the vocational expert testimony regarding the existence of other work in significant numbers in the economy. Keating v. Secretary of Health and Human Servs., 848 F.2d 271, 276 (1st Cir. 1988).

Second Circuit

Where the ALJ failed to make specific findings as to the claimant’s need to alternate between sitting and standing, the ALJ’s determination that the claimant could perform sedentary work was based on an incomplete analysis. Ferraris v. Heckler, 728 F.2d 582, 586 (2d Cir. 1984).

Third Circuit

Given that SSR 83-12 suggested that the claimant could not perform most sedentary or light jobs (because of her need to have the option to sit or stand at will and her ability to perform only unskilled work), the Third Circuit refused to assume that the ALJ’s finding that the claimant could perform a limited range of light work meant that she could perform a significant number of jobs in the economy. Boone v. Barnhart, 353 F.3d 203, 211 (3d Cir. 2003).

A district court held that an ALJ’s decision was based on substantial evidence where the ALJ, based on the vocational expert’s testimony, determined that the claimant could perform sedentary work as long as he was allowed to alternate between sitting and standing. Palmer v. Apfel, 995 F. Supp. 549, 554 (E.D. Pa. 1998).

Fifth Circuit

Having to alternate between sitting and standing in order to work the entire day does not fit within the definition of sedentary work. Ripley v. Chater, 67 F.3d 552, 558 n. 25 (5th Cir. 1995), citing Scott v. Shalala, 30 F.3d 33, 34 (5th Cir. 1994).

The Fifth Circuit held that because the claimant needed to alternate between sitting and standing as needed, the claimant’s exertional capabilities did not fit within the definition of sedentary work. Scott v. Shalala, 30 F.3d 33, 34 (5th Cir. 1994), citing Wages v. Secretary of Health & Human Servs., 755 F.2d 495 (6th Cir. 1985) (holding that substantial evidence is lacking to support the finding that the claimant can perform sedentary work when a sit/stand option has been added to a claimant’s exertional restrictions). In such a case, the ALJ erred in applying the Grids in this case. Id., citing Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984) (stating that the Grids were improperly applied when claimant’s back pain necessitated that he alternate periods of sitting, standing and walking).

In Smith v. Chater, 962 F. Supp. 980 (N.D. Tex. 1997), the Texas district court held that the ALJ properly sought VE testimony given the fact that the claimant’s ability to perform light work was limited to jobs which provided for a sit/stand option and which did not involve repetitive use of his hands. Id. at 983.

Sixth Circuit

Because the evidence showed that the claimant needed to alternate between sitting and standing for her comfort, the Sixth Circuit found that there was not substantial evidence to support the ALJ’s conclusion that the claimant could perform sedentary work and that reliance on the Grids was error. Wages v. Secretary of Health & Human Servs., 755 F.2d 495, 499 (6th Cir. 1985).

The court held in Siedlecki v. Apfel, 46 F. Supp.2d 729 (N.D. Ohio 1999) that the record lacked substantial evidence to support the ALJ’s conclusion that the claimant had the RFC to perform the full range of sedentary work and had no nonexertional limitations. Id. at 732. Rather, there was substantial evidence showing that the claimant had severe combined exertional and nonexertional limitations requiring remand to “determine, in consultation with a vocational expert, whether or not sedentary work exists in significant numbers in the national economy for a person who has postural limitations and has a baseline sitting and standing tolerance of 60 minutes.” Id. In so holding, the court noted that the claimant’s sitting tolerance of 60 minutes and postural limitations are limitations severe enough to restrict a full range of gainful employment. Id. at 733.

Seventh Circuit

Where the ALJ held that the claimant was incapable of prolonged sitting, standing, and walking, the court noted that there were still some jobs in which “a person can sit or stand with a degree of choice.” Peterson v. Chater, 96 F.3d 1015, 1016 (7th Cir. 1996), citing SSR 83-12. SSR 83-12 provides that these jobs are “typically professional and managerial” jobs. Some jobs, however, of neither a professional nor a managerial character, allow the worker to get up every hour or so and move around, and the claimant might be capable of holding such a job. The court further noted that SSR 83-12 indicates that in the case of an applicant for disability benefits who cannot sit or stand indefinitely, a vocational expert, vocational dictionary, or other appropriate guide or source must be consulted to determine whether there are sufficient jobs in the national economy that the applicant is physically capable of holding to justify a conclusion that he is not disabled. The court also stated that the ALJ’s finding that the claimant could perform sedentary work was in conflict with his other finding that the claimant was not capable of working in a job that required prolonged sitting, standing, and walking. Since these two findings were “irreconcilable,” remand was required. Id.

The Seventh Circuit rejected a claimant’s contention that SSR 83-12 precluded a finding of the existence of unskilled jobs with the option to sit or stand at will. Books v. Chater, 91 F.3d 972, 980 (7th Cir. 1996). The court noted that SSR 83-12 provides that it cannot be assumed that claimants limited to light work with a sit/stand option can perform the full range of light jobs and directs the ALJ to obtain a vocational specialist in such cases to determine whether significant light jobs exist in the national economy that could accommodate the special limitations of the claimant. Id.

Where claimant argued that the Commissioner erred in failing to consider her standing limitations, the court held that the claimant’s inability to stand for more than thirty minutes at a time did not impact her ability to perform her past work. Hert v. Barnhart, 234 F. Supp.2d 832, 840 (N.D. Ill. 2002).

In Castrejon v. Apfel, 131 F. Supp.2d 1053 (E.D. Wis. 2001), the district court remanded the case, in part, due to the ALJ’s failure to set forth the frequency of the claimant’s need to alternate sitting and standing in the RFC assessment. Id.

Eighth Circuit

The court found that the ALJ erred in denying benefits where the VE testified, in response to a second hypothetical, that there were no jobs the claimant could perform that could accommodate the claimant’s limitations, such as the ability to stand and sit only for ten to fifteen minutes at a time; the need to get up and move around frequently; and the need to lie down two or three times a day. Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir. 1997).

Although the need to alternate between sitting and standing more frequently than every two hours could significantly erode the occupational base for a full range of unskilled sedentary work and an RFC assessment should include the frequency with which an applicant needs to alternate between sitting and standing, the ALJ properly discredited the physician’s opinion and determined that the claimant could sit for up to six hours during an eight-hour period, with no apparent need to alternate that position more frequently than every two hours. Ellis v. Barnhart, 392 F.3d 988, 997 (8th Cir. 2005).

The Eighth Circuit rejected a claimant’s contention that a VE’s testimony was inconsistent with SSR 83-12 in that not all of the unskilled light jobs listed by the VE would permit him to alternate positions. Misner v. Chater, 79 F.3d 745, 746 (8th Cir. 1996) (noting that the VE acknowledged that the claimant would not be capable of performing all unskilled light jobs, but testified that the claimant could perform some light jobs which allow for alternating positions, consistent with the claimant’s limitations).

The Eighth Circuit rejected the claimant’s argument that the ALJ ignored SSR 83-12, which, according to the claimant, provided that unskilled job requirements preclude a person from sitting or standing at will as the claimant’s pain requires. Carlson v. Chater, 74 F.3d 869, 871 (8th Cir. 1996). The court stated that the claimant misread SSR 83-12, which specifically provides that “in cases of unusual limitation of ability to sit or stand a [vocational expert] should be consulted to clarify the implications for the occupational base.” As required by the ruling, the VE properly took into account the claimant’s need to alternate positions when assessing what jobs she could perform. Id.

Where a medical provider instructed that the claimant was required to alternate sitting and standing for no longer than 30 to 40 minutes at a time, the claimant was precluded from performing the full range of sedentary work and was disabled pursuant to the Grids. Ramey v. Shalala, 26 F.3d 58, 61 (8th Cir. 1994).

Noting the “binding instructions” of Social Security Ruling 83-12 that “[u]nskilled jobs . . . ‘are particularly structured so that a person cannot ordinarily sit or stand at will,’” coupled with the fact that the claimant was limited to unskilled work and that the record evidence indicated she was unable to stand long enough to do light work activity, nor sit long enough to perform sedentary work, the ALJ should have found her disabled. Stoglin v. Apfel, 130 F. Supp.2d 1060, 1067 (S.D. Iowa 2000). See also Strong v. Apfel, 122 F. Supp.2d 1025, 1030 (S.D. Iowa 2000) (noting that pursuant to SSR 83-12, a person who must alternate standing and sitting “is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing . . . .”).

The court noted that none of the claimant’s examining doctors presented limitations that would prevent him from performing light duty work where he could alternate between sitting and standing. Copes v. Chater, 983 F. Supp. 1268, 1273 (E.D. Mo. 1997).

Ninth Circuit

Unless discredited, a medical opinion regarding the claimant’s inability to sit or stand for prolonged periods would require the assistance of a vocational expert in deciding whether there is a significant number of jobs in the national economy that the claimant can do since most sedentary jobs require sitting for most or all of the day. Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001).

In finding that the claimant “could sit throughout an eight-hour workday with normal breaks every two hours to allow for the need to change his position,” the ALJ failed to give proper weight to the opinions of the claimant’s treating physicians and the ALJ’s own medical expert. Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999). The court noted that there was no medical evidence to support the ALJ’s finding that the claimant could work through an eight-hour workday with breaks every two hours. Instead, the ALJ apparently relied on the claimant’s testimony regarding a road trip he took to California. Yet, there was no evidence regarding how much cross-country driving the claimant did, if any, the frequency or the duration of the rest stops, or whether the claimant rode sitting up, reclining, or lying down in the back seat. Thus, evidence that the claimant took a four-day road trip to California, without more information, was insufficient to counter the opinion of the claimant’s treating physicians and the ALJ’s own medical examiner that the claimant needed to shift positions “every 30 minutes or so.” Id.

Although the ALJ correctly availed himself of the testimony of a vocational expert, he failed to instruct the VE to consider the claimant’s need to alternate periods of sitting and standing. Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984). Therefore, the testimony by the vocational expert did not constitute substantial evidence sufficient to support the ALJ’s finding that the claimant was able to engage in light and sedentary forms of substantial gainful employment. Id.

Tenth Circuit

The Tenth Circuit rejected a claimant’s assertion that since SSR 83-12 limited jobs that permit sitting and standing at will to managerial or professional, none of the jobs identified by the VE constituted substantial evidence of no disability. Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) (finding that this argument was “legally frivolous” and based on an incomplete reading of SSR 83-12). The court held that the ALJ complied with SSR 83-12 by obtaining the testimony of a VE to “clarify the implications for the occupational base.” Id.

The Tenth Circuit rejected the claimant’s argument that SSR 83-12 directed a finding of disability based on his need to alternate sitting and standing. Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995). The court reasoned that SSR 83-12 discusses a category of cases in which a claimant’s nonexertional limitations place him between categories, such as a claimant who must alternate sitting and standing. In such cases, “a [vocational expert] should be consulted to clarify the implications for the occupational base.” Id., citing SSR 83-12. As the ALJ obtained such testimony, there was no legal error. Id.

Even where alternation of position is a possibility, relying on the Grids for light or sedentary work is inappropriate, and the ALJ must consult a vocational expert before making a determination at step five. Ragland v. Shalala, 992 F.2d 1056, 1060 n. 4 (10th Cir. 1993).

In Godfrey v. Apfel, 77 F. Supp.2d 1178 (D. Kan. 1999), the district court rejected the claimant’s argument that the ALJ failed to specify the frequency for the claimant’s need to alternate between sitting/standing in the hypothetical. Id. at 1189-90. The court reasoned that the claimant did not show that the ALJ could have been more specific in describing the frequency based on the medical evidence of record at that time. Specificity is plainly a function of what evidence exists. In this case, the ALJ was as specific as the record allowed him to be. Id. at 1190.

Eleventh Circuit

Where the ALJ found that a claimant needed to alternate between sitting and standing throughout the day, the Eleventh Circuit held that the ALJ erred in mechanically applying the Grids to determine that the claimant was not disabled. Gibson v. Heckler, 762 F.2d 1516, 1521 (11th Cir. 1985).

Practical Pointer
If the medical evidence supports that the claimant requires the ability to sit and stand at will, argue that the ALJ may not mechanically rely on the Grids and must instead obtain vocational expert testimony. Also remember that the need for a sit/stand option precludes a claimant from performing the full range of either sedentary or light work, which may, in some cases, assist in establishing disability under the Grids.